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Locked Out: The (Un)Constitutionality of Revoking the Passports of Americans Fighting for ISIS

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The Syrian conflict is now entering its fourth year. What began as a struggle for democratic reform has been perverted into a brutal sectarian war leading to the rise of the Islamic State of Iraq and Syria (ISIS) and the empowerment of other extremists Sunni groups. Seeking to establish a new Islamic caliphate, ISIS has attracted hundreds of disenfranchised extremist Muslims from all over the world. Interestingly enough approximately 2,500 ISIS fighters are citizens of Europe, Australia, New Zealand, and the U.S., and many are returning home with terrorist aspirations.[1]

One of the most notorious of the returning ISIS fighters is 29-year-old Frenchman, Mehdi Nemmouche.[2] Nemmouche spent approximately a year in Syria before returning to Europe and murdering two Israeli tourists and a French volunteer at a Jewish museum in Belgium. French intelligence say he was radicalized in prison, travelled to Syria for a year following his release, then traveled to Malaysia and Singapore before returning to Europe.

Since this attack and others like it, European and American politicians have been calling for revoking the passports and/or citizenships of any nationals who go to Syria to fight for ISIS or al Qaeda. Representatives Candice Miller (MI-R), Michele Bachmann (R-MN), and Ted Poe (R-TX),  announced plans for legislation giving the Executive the authority to revoke U.S. passports and citizenships of Americans who join foreign terrorist organizations.[3] Senator Ted Cruz (R-TX) proposed similar plans in the Senate.[4] This call has been echoed by their right wing counterparts in Europe as well. Marine Le Pen, President of France’s far-right party Front National, not only called for revoking citizenships, but also strong restrictions on immigration from the Muslim world.[5]

Are such security measures constitutional? Moreover, would they really help deter or prevent terrorist activity?

The Supreme Court dealt with the legality of this issue during the Cold War, in the 1981 case Haig v. Agee. In 1974, Phillip Agee, an ex-CIA operative, launched a “campaign to fight the United States CIA wherever it is operating.” [6] Agee then began revealing the classified information, including the names and whereabouts of CIA employees all over the world, putting them and their missions at serious risk, and in some instances leading to physical violence against them. In response, Secretary of State Cyrus Vance revoked Agee passport leaving him stuck in West Germany, where he was living at the time. Agee filed suit claiming that the revocation of his passport without a hearing violated his 5th Amendment due process right and liberty interest in a right to travel and also his 1st Amendment right to criticize the government.[7] In addition, Agee argued that the Passport Act of 1926, which conferred the authority to regulate passports to the Secretary of State, did not permit the Secretary to revoke passports.[8]

The Supreme Court held that Agee’s constitutional attacks were without merit. The Court found that the right to hold a passport is subordinate to national security and foreign policy considerations, and is subject to reasonable governmental regulation.[9] On the due process issue, the Court held that the Government was not required to hold a pre-revocation hearing, since where there was a substantial likelihood of “serious damage” to national security or foreign policy as the result of a passport holder’s activities abroad.[10] Moreover, Agee’s actions were more than just an exercise in free speech. By his own admission, Agee’s speech created a significant harm to national security interests, thus warranting the revocation. [11]

Regarding whether the Secretary had the authority to revoke passports, the Court stated although Congress did not expressly confer upon the Secretary a power to revoke or to deny passport applications, it was beyond dispute that the Secretary had the power to deny a passport for reasons not specified in the statutes. A survey of passport law and administrative policy from 1835 to 1966, demonstrated congressional recognition of Executive authority to withhold passports on the basis of substantial reasons of national security and foreign policy.[12] The Court compared Congressional action and inaction concerning the broad rule-making authority granted in other Acts, concluding that there was “weighty” evidence of Congressional approval of the Secretary’s interpretation that he had been delegated the power to restrict passports on the basis of national security.[13]

Passports guarantee Americans the freedom to travel internationally. There is, however, a second dimension to passports which was not addressed in Agee; a passport also acts a national identification card to citizens traveling abroad. This dual function of a passports was recognized in an 1835 Supreme Court decision, Urtetiqui v. D’Arcy. “[T]he bearer is recognized, in foreign countries, as an American citizen; and which, by usage and the law of nations, is received as evidence of the fact.”[14] As Law Professor Patrick Wiel points out, while the revocation of the right to travel for security reasons may pass constitutional muster, it is less clear whether the government may deprive an individual of their right to a legal identity as an American citizen.[15]

The constitutional right to be secure in an American citizenship was affirmed in the 1967 case, Afroyim v. Rusk. In that case, the U.S. government had attempted to revoke the citizenship of Beys Afroyim, a Polish-born man, because he had cast a vote in an Israeli election after becoming a naturalized U.S. citizen.[16] The Supreme Court decided that Afroyim’s right to retain his citizenship was guaranteed by the Citizenship Clause of the Fourteenth Amendment to the Constitution.[17] The majority opinion stated, “We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation against a congressional forcible destruction of his citizenship, whatever his creed, color, or race. Our holding does no more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship.”[18] Additional foundations for this right can be found in Article 15 of the Universal Declaration of Human Rights, which guarantees the right to a nationality, as well as Article 7 of the Convention of the Rights of the Child, which states that a child has a right to be registered with a name and a nationality at birth.

Conclusion

The practicality of these plans is also questionable. According to a recent study by the Brookings Institute, most of Western fighters are either killed in action, remain abroad, or promptly arrested either en route to Syria or as soon as they return home.[19] Analysts say that Western countries need to coordinate their security efforts now more than ever before, but the tools are already there to control the threat.[20] Revoking passports and citizenships is an unnecessarily extreme step that might not even be that useful. Rather than not letting them back in, it would be much more advantageous to track their movements and communications once they return. It appears that calls to revoke passports and citizenships is simply a politically motivated overreaction.

Daniel L. Byman and Jeremy Shapiro of the Brooking Institute put it best: “Measures to reduce the threat of terrorism can and should be improved. But the standard of success cannot be eliminating risk in its totality. If it is, Western governments are doomed to failure and, worse, to an overreaction that will breed far more dangerous policy mistakes.”

 


[1] Daniel L. Byman and Jeremy Shapiro, Be Afraid. Be A Little Afraid: The Threat of Terrorism from Western Foreign Fighters in Syria and Iraq, The Brookings Institution (January 2015), http://www.brookings.edu/research/papers/2015/01/western-foreign-fighters-in-syria-and-iraq-byman-shapiro.

[2] French suspect in Brussels Jewish museum attack spent year in Syria, The Guardian, June 1, 2014, http://www.theguardian.com/world/2014/jun/01/french-suspect-brussels-jewish-museum-attack-syria.

[3] GOP bills would revoke passports for people involved with ISIS, The Hill, Sept. 9, 2014, http://thehill.com/blogs/floor-action/house/217109-gop-bills-would-revoke-passports-for-people-involved-with-isis.

[4] Cruz Floats Bill to Revoke Citizenship of Americans Who Fight for ISIS, TIME, Sept. 8, 2014, http://time.com/3303531/senator-ted-cruz-american-terrorists-citizenship-bill/.

[5] Marine Le Pen, Op-Ed: To Call This Threat by Its Name, New York Times, Jan. 18, 2015, http://www.nytimes.com/2015/01/19/opinion/marine-le-pen-france-was-attacked-by-islamic-fundamentalism.html.

[6] Haig v. Agee, 453 U.S. 280, 280 (1981).

[7] Id. at 306.

[8] Id. at 318.

[9] Id. at 306.

[10] Id. at 310.

[11] Id. at 308.

[12] Id. 301.

[13] Id.

[14] Urtetiqui v. D’Arcy, 34 U.S. 692, 699 (1835).

[15] Patrick Weil, Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts, 123 Yale L.J. F. 565 (2014), http://yalelawjournal.org/forum/citizenship-passports-and-the-legal-identity-of-americans.

[16] Afroyim v. Rusk, 387 U.S. 253, 254 (1967).

[17] Id. at 267.

[18] Id. at 268.

[19] Daniel L. Byman and Jeremy Shapiro, Homeward Bound? Don’t Hype the Threat of Returning Jihadists, The Brookings Institution, September 30, 2014, http://www.brookings.edu/research/articles/2014/09/30-syria-foreign-fighters-byman-shapiro.

[20] Patrick Wiel, Revoking passports isn’t the way to stop American jihadists from returning home, Reuters, Oct. 7, 2014, http://blogs.reuters.com/great-debate/2014/10/07/revoking-passports-isnt-the-way-to-stop-american-jihadists-from-returning-home/.


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